Blizzard Energy v. Schaefers

Filed 11/29/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BLIZZARD ENERGY, INC., 2d Civil No. B314740
(Super. Ct. No. 17CVP-0266)
Plaintiff and Appellant, (San Luis Obispo County)
v.
BERND SCHAEFERS,
Defendant and Respondent.
We hold that, for purposes of the vexatious litigant statute,
a defendant who files a cross-complaint has commenced a
separate, distinct, and independent cause of action. Thus,
respondent’s cross-complaint in a Kansas action counts as one of
the “five litigations” required for a vexatious litigant finding
under Code of Civil Procedure section 391, subdivision (b)(1).1
The statute targets a person. It does not matter where the
litigation was filed.
Blizzard Energy, Inc., appeals from an order denying its
motion to declare respondent Bernd Schaefers a vexatious
litigant and prohibit him “from filing any new litigation in
All statutory references are to the Code of Civil Procedure
1
unless otherwise stated.
propria persona in the California courts without first obtaining
leave of the presiding judge of the court in which the litigation is
proposed to be filed.” We reverse because the order was based on
the trial court’s erroneous interpretation of section 391,
subdivision (b)(1). The trial court concluded that the statute does
not apply to prior litigation commenced by the filing of a cross-
complaint. It does apply.
This is the third time that the parties have come before this
court. (See Blizzard Energy, Inc. v. Schaefers (2020) 44
Cal.App.5th 295; Blizzard Energy, Inc. v. Schaefers (2021) 71
Cal.App.5th 832.)
The Order Is Appealable
Appellant’s motion was authorized by section 391.7,
subdivision (a), which provides: “[T]he court may, on its own
motion or the motion of any party, enter a prefiling order which
prohibits a vexatious litigant from filing any new litigation in the
courts of this state in propria persona without first obtaining
leave of the presiding justice or presiding judge of the court
where the litigation is proposed to be filed. Disobedience of the
order by a vexatious litigant may be punished as a contempt of
court.”
“[T]here is no question that the prefiling order
contemplated by section 391.7, subdivision (a) is an injunction.”
(Luckett v. Panos (2008) 161 Cal.App.4th 77, 85.) “[A]n order
granting . . . or refusing to grant . . . an injunction” is appealable.
(§ 904.1, subd. (a)(6).) Therefore, the order denying appellant’s
motion is appealable as an order refusing to grant an injunction.
(See In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th
1339, 1347.)
2
Appellant’s Theories Why Respondent
is a Vexatious Litigant
In the trial court appellant advanced two theories why
respondent qualifies as a vexatious litigant. We need consider
only the first theory.2 It is based on section 391, subdivision
(b)(1), which provides that a person is a vexatious litigant if “[i]n
the immediately preceding seven-year period [he] has
commenced, prosecuted, or maintained in propria persona at least
five litigations other than in a small claims court that have been
. . . finally determined adversely to [him] . . . .” (Italics added.)
“‘Litigation’ means any civil action or proceeding, commenced,
maintained or pending in any state or federal court.” (Id., subd.
(a).)
Appellant claimed that respondent “meets the definition of
a vexatious litigant [under section 391, subdivision (b)(1)] as . . .
he has commenced [in propria persona] five litigations over the
past six years, which have been finally determined adversely to
him . . . .” One of the five litigations was commenced by the filing
of cross-complaints in a Kansas action.
Trial Court’s Ruling
As to the first theory (§ 391, subd. (b)(1)), the trial court
ruled: “[T]he first litigation of the five cited by [appellant]
2 Appellant’s second theory was that, pursuant to section
391, subdivision (b)(2), respondent qualifies as a vexatious
litigant because he “has repeatedly relitigated or attempted to
relitigate [in propria persona] claims and issues that have been
finally determined against him.” (Bold, capitalization, and italics
omitted.)
The trial court ruled that respondent does not qualify as a
vexatious litigant under the second theory. (§ 391, subd. (b)(2).)
Appellant does not contest this ruling.
3
involved a cross-complaint in the Kansas action, which the Court
finds did not constitute litigation ‘commenced, prosecuted or
maintained’ by [respondent]. (See Holcomb v. U.S. Bank Nat.
Assn. (2005) 129 Cal.App.4th 1494, 1502 [Holcomb].)
[¶] Because [appellant] does not cite five cases falling within the
parameters of section 391, subdivision (b)(1), [respondent] does
not qualify as a vexatious litigant under that provision.” (Fn.
omitted.)
Appellant asserts, “The sole issue presented by this appeal
is whether the filing and prosecution of a cross-complaint by
[respondent] counts toward the number of cases necessary for
him to be declared a vexatious litigant” under section 391,
subdivision (b)(1).3
3 On July 22, 2022, respondent requested that we take
judicial notice of eight documents. Respondent filed the first
three documents in the trial court in opposition to appellant’s
motion. Appellant has not objected to taking judicial notice of
these documents. Pursuant to Evidence Code section 452,
subdivision (d) and section 459, we grant respondent’s request for
judicial notice of the first three documents.
Of the remaining five documents, four were filed in the
United States Bankruptcy Court and one was filed in the Kansas
action. The latter document is a partial reporter’s transcript of a
hearing conducted on February 24, 2017. Appellant has
submitted opposition to respondent’s request for judicial notice of
these five documents. We deny the request for two reasons.
First, the documents are not relevant to the issue in this appeal.
Second, the documents were not presented to the trial court. “An
appellate court may properly decline to take judicial notice under
Evidence Code sections 452 and 459 of a matter which should
have been presented to the trial court for its consideration in the
first instance.” (Brosterhous v. State Bar (1995) 12 Cal.4th 315,
325-326.)
4
Standard of Review
The trial court’s ruling on the first theory involves the
interpretation of section 391, subdivision (b)(1). We therefore
independently review the ruling. (Markow v. Rosner (2016) 3
Cal.App.5th 1027, 1052 [“The interpretation and applicability of a
statute is a question of law, which we review de novo”].)
Respondent’s Cross-Complaint in Kansas
Qualifies as One of Five Litigations
Appellant’s counsel declared under penalty of perjury:
“[One of the five litigations is] Blizzard Energy, Inc. v. Valentin
Alexandrov, et al., Twentieth Judicial District in the District
Court of Barton County, Kansas, Case No. 2015-CV-000055 . . . .
[There, respondent] filed counter-claims and third-party claims in
2015 against [appellant] and Franziska Shepard . . . , and
judgment was ultimately entered in favor of [appellant] and
Shepard on these claims (through summary judgment and
judgment after trial). [Respondent] did not appeal the rulings
against him on his counter-claims and third-party claims.”
Respondent’s counterclaims and third-party claims in the
Kansas action were the equivalent of cross-complaints in
California. Section 428.80 provides: “The counterclaim is
abolished. Any cause of action that formerly was asserted by a
counterclaim shall be asserted by a cross-complaint.” (See also
§ 428.10, specifying causes of action that may be asserted by a
cross-complaint.)
In support of its ruling that the Kansas cross-complaints
“did not constitute litigation ‘commenced, prosecuted or
maintained’ by [respondent]” within the meaning of section 391,
subdivision (b)(1), the trial court relied upon Holcomb, supra, 129
Cal.App.4th 1494. “Holcomb challenge[d] orders . . . declaring
5
him to be a vexatious litigant . . . .” (Id. at p. 1498.) The court
held that the evidence did not support a finding that he was a
vexatious litigant under section 391, subdivision (b)(1) because
one of the five litigations involved a cross-complaint filed not by
Holcomb, but by the party he was suing. The appellate court
explained: “This municipal court case involved only the
defendant's [not Holcomb’s] cross-complaint and [therefore] did
not constitute litigation ‘commenced, prosecuted, or maintained’
by Holcomb.” (Holcomb, supra, at p. 1502.)
Unlike the prior litigation in Holcomb, the prior Kansas
litigation was commenced by respondent’s cross-complaints. In
Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, our
Supreme Court rejected the defendants’ argument that “their
cross-complaint did not initiate a judicial proceeding.” The court
explained: “For our purposes no sound reason appears for
treating a cause of action initiated by a cross-pleading as only an
integral part of that cause initiated by the complaint. In Skaff v.
Small Claims Court (1968) 68 Cal.2d 76 . . . , we acknowledged
that the filing of a counterclaim instituted a ‘. . . separate,
simultaneous action’ and reasoned that for purposes of the cross-
action, the cross-defendant was a defendant, noting: ‘[i]n
analyzing counterclaims and cross-complaints, this court has
recognized that “these cross-actions . . . are still distinct and
independent causes of action, so that when properly interposed
and stated the defendant becomes in respect to the matters
pleaded by him, an actor, and there are two simultaneous actions
pending between the same parties wherein each is at the same
time both a plaintiff and a defendant.” [Citation.]’ [Citations.]
In other instances case and statutory law recognize that a cross-
pleading creates an action distinct and separate from an initial
6
pleading. Dismissal of the complaint, for instance, does not affect
the independent existence of the cross-complaint or
counterclaim.” (Id. at pp. 51-52.)
Respondent argues: “During the course of the litigation
history involving [him] the overwhelming theme is one of self-
defense. The Cross-Complaint in Kansas was filed in response to
the action commenced in Kansas by Appellant.” “The purpose of
§ 391(b) does not apply to a litigant who is essentially responding
or trying to defend himself.” Irrespective of whether respondent
believed he was acting in “self-defense,” Bertero makes clear that
the Kansas cross-complaints commenced “litigation” within the
meaning of section 391, subdivisions (a) and (b)(1). Accordingly,
the trial court erred as a matter of law.
Conclusion
The order denying appellant’s motion to declare respondent
a vexatious litigant is reversed. Appellant shall recover its costs
on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
7
Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
Rogers, Sheffield & Campbell and John H. Haan, Jr.,
Nathan C. Rogers, for Plaintiff and Appellant.
Wiley Ramey, for Defendant and Respondent.